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EU/UA/Annex XXI-A/en 1
Disclaimer: Please note that the present documents are only made available for information purposes.
The official version of the Association Agreement – once signed – will be published in the Official
Journal of the European Union. The texts are capable of neither conferring any rights nor creating any
legally binding obligations of public international law.
ANNEX XXI to Chapter 8
PUBLIC PROCUREMENT
ANNEX XXI-A
ANNEX XXI-A to Chapter 81
INDICATIVE TIME SCHEDULE FOR INSTITUTIONAL REFORM,
LEGISLATIVE APPROXIMATION AND MARKET ACCESS
Phase Indicative time
schedule
Market access
granted to EU by
Ukraine
Market access
granted to Ukraine
by EU
1 Implementation of Article 151
Implementation of the
Institutional reform set out in
Article 150.2
Agreement of the Reform
Strategy set out in Article 152
6 months after
the entry into
force of the
Agreement
Supplies for central
government
authorities
Supplies for central
government
authorities
1 Pursuant to the Public Procurement Chapter of the Agreement this Annex is based on the
provisions of Directives 2004/17/EC, 2004/18/EC, 89/665/EEC, 92/13/EEC and 2007/66/EC
which cover contract award and review procedures within the European Union. This may
raise practical questions in the interpretation of certain provisions of the said Directives in the
course of legislative approximation. In such cases legislative approximation shall be
performed mutatis mutandis, taking into account the EU-Ukraine relations as stipulated in this
Agreement. Ukraine shall choose the appropriate legal instruments to transpose the
obligations deriving from this Chapter according to its own constitutional order.
EU/UA/Annex XXI-A/en 2
Phase Indicative time
schedule
Market access
granted to EU by
Ukraine
Market access
granted to Ukraine
by EU
2 Approximation and
implementation of basic
elements of
Directive 2004/18/EC and of
Directive 89/665/EEC
3 years after
the entry into
force of the
Agreement
Supplies for state,
regional and local
authorities and
bodies governed by
public law
Supplies for state,
regional and local
authorities and
bodies governed by
public law
Annexes
XXI-B and
XXI-C
3 Approximation and
implementation of basic
elements of
Directive 2004/17/EC and of
Directive 92/13/EEC
4 years after
the entry into
force of the
Agreement
Supplies for all
contracting entities
in the utilities sector
Supplies for all
contracting entities
Annexes
XXI-D and
XXI-E
4 Approximation and
implementation of Other
elements of
Directive 2004/18/EC
6 years after
the entry into
force of the
Agreement
Service and works
contracts and
concessions for all
contracting
authorities
Service and works
contracts and
concessions for all
contracting
authorities
Annexes
XXI-F,
XXI-G and
XXI-H
5 Approximation and
implementation of Other
elements of
Directive 2004/17/EC
8 years after
the entry into
force of the
Agreement
Service and works
contracts for all
contracting entities
in the utilities sector
Service and works
contracts for all
contracting entities
in the utilities sector
Annexes
XXI-I and
XXI-J
________________
EU/UA/Annex XXI-B/en 1
ANNEX XXI-B
ANNEX XXI-B to Chapter 8
BASIC ELEMENTS OF DIRECTIVE 2004/18/EC
(PHASE 2)
TITLE I
Definitions and general principles
Article 1 Definitions (points: 1, 2, 8, 91, 11a, b and d, 12, 13, 14, 15)
Article 2 Principles of awarding contracts
Article 3 Granting of special or exclusive rights: non-discrimination clause
TITLE II
Rules on public contracts
CHAPTER I
General provisions
Article 4 Economic operators
Article 6 Confidentiality
1 It is noted that 'bodies governed by public law' are bodies that fulfil all three conditions set out
in Article 1(9) of Directive 2004/18/EC
EU/UA/Annex XXI-B/en 2
CHAPTER II
Scope
Section 1
Thresholds
Article 8 Contracts subsidised by more than 50 % by contracting authorities1
Article 9 Methods for calculating the estimated value of public contracts, framework
agreements and dynamic purchasing systems
Section 2
Specific situations
Article 10 Defence procurement2
Section 3
Excluded contracts
Article 12 Contracts in the water, energy, transport and postal services sectors (only when
basic rules of Directive 2004/17/EC have been transposed)
Article 13 Specific exclusions in the field of telecommunications
Article 14 Secret contracts and contracts requiring special security measures
Article 15 Contracts awarded pursuant to international rules
Article 18 Service contracts awarded on the basis of an exclusive right
1 It is noted that Article 9(8)(b)(ii) of Directive 2004/18/EC does not oblige a Party to use
contracts without a fixed term of duration. It is left to the domestic legislator to determine
whether and where such contracts may be used. 2 The present Agreement only covers defence-related procurement as set out in Annex V to
Directive 2004/18/EC. The Parties may remove items from this list at any time by decision of
the Trade Committee.
EU/UA/Annex XXI-B/en 3
Section 4
Special arrangement
Article 19 Reserved contracts
CHAPTER III
Arrangements for public service contracts
Article 20 Service contracts listed in Annex II A
Article 21 Service contracts listed in Annex II B
Article 22 Mixed contracts including services listed in Annex II A and services listed in
Annex II B
CHAPTER IV
Specific rules governing specifications and contract documents
Article 23 Technical specifications
Article 24 Variants
Article 25 Subcontracting
Article 26 Conditions for performance of contracts
Article 27 Obligations relating to taxes, environmental protection, employment protection
provisions and working conditions
EU/UA/Annex XXI-B/en 4
CHAPTER V
Procedures
Article 28 Use of open, restricted and negotiated procedures and of competitive dialogue
Article 30 Cases justifying use of the negotiated procedure with prior publication of a
contract notice
Article 31 Cases justifying use of the negotiated procedure without publication of a
contract notice
CHAPTER VI
Rules on advertising and transparency
Section 1
Publication of notices
Article 35 Notices: paragraph 1 mutatis mutandis1; paragraph 2
2; paragraph 4 first, third
and fourth subparagraph
Article 36 Form and manner of publication of notices: paragraph 1; paragraph 7
Section 2
Time limits
Article 38 Time limits for receipt of requests to participate and for receipt of tenders
Article 39 Open procedures: Specifications, additional documents and information
1 The three subparagraphs following indent c) do not need to be transposed.
2 The reference to "competitive dialogues", "framework agreements" and "dynamic purchasing
systems" in Article 35 paragraph 2, 3 and 4 should be implemented as part of Phase 4.
EU/UA/Annex XXI-B/en 5
Section 3
Information content and means of transmission
Article 40 Invitations to submit a tender, participate in the dialogue or negotiate
Article 411 Informing candidates and tenderers
Section 4
Communication
Article 42 Rules applicable to communication
CHAPTER VII
Conduct of the procedure
Section 1
General provisions
Article 44 Verification of the suitability and choice of participants and award of contracts
1 The reference to "framework agreements" and "dynamic purchasing systems" in Article 41
should be implemented as part of Phase 4
EU/UA/Annex XXI-B/en 6
Section 2
Criteria for qualitative selection
Article 451 Personal situation of the candidate or tenderer
Article 462 Suitability to pursue the professional activity
Article 47 Economic and financial standing
Article 48 Technical and/or professional ability
Article 49 Quality assurance standards
Article 50 Environmental management standards
Article 51 Additional documentation and information
Section 3
Award of the contract
Article 53 Contract award criteria
Article 55 Abnormally low tenders
1 Ukraine shall not be obliged to join any of the Conventions referred to in this article. Instead,
it will, where necessary, transpose the definitions contained in these Conventions into her
domestic legislation. 2 In transposing Article 46 of Directive 2004/18/EC, Ukraine should include a list of
professional or trade registers corresponding to those set out in Annexes, IX-A, IX-B and IX-
C to that Directive.
EU/UA/Annex XXI-B/en 7
ANNEXES
Annex I List of the activities referred to in Article 1(2)(b)
Annex II Services referred to in Article 1(2)(d)
Annex II A
Annex II B
Annex V List of products referred to in Article 7 with regard to contracts awarded by
contracting authorities in the field of defence
Annex VI Definition of certain technical specifications
Annex VII Information to be included in notices
Annex VII A Information to be included in public contract notices
Annex X Requirements relating to equipment for the electronic receipt of tenders,
requests to participate and plans and projects in design contests
________________
EU/UA/Annex XXI-C/en 1
ANNEX XXI-C
ANNEX XXI-C to Chapter 8
BASIC ELEMENTS OF DIRECTIVE 89/665/EEC1 OF 21 DECEMBER 1989
ON THE COORDINATION OF THE LAWS, REGULATIONS AND
ADMINISTRATIVE PROVISIONS RELATING TO THE APPLICATION
OF REVIEW PROCEDURES TO THE AWARD OF PUBLIC SUPPLY AND
PUBLIC WORKS CONTRACTS
(HEREINAFTER REFERRED TO AS "DIRECTIVE 89/665/EEC") AS AMENDED
BY DIRECTIVE 2007/66/EC OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL OF 11 DECEMBER 2007
AMENDING COUNCIL DIRECTIVES 89/665/EEC AND 92/13/EEC
WITH REGARD TO IMPROVING THE EFFECTIVENESS OF REVIEW PROCEDURES
CONCERNING THE AWARD OF PUBLIC CONTRACTS
(HEREINAFTER REFERRED TO AS "DIRECTIVE 2007/66/EC")
(PHASE 2)
1 For the purpose of this Agreement, it is clarified that the objective of legislative
approximation to Directive 89/665/EEC consists in ensuring the availability of appropriate
remedy procedures for contracts falling within the scope of this Agreement. Therefore,
references in Directive 89/665/EEC to "contracts referred to Directive 2004/18/EC" or
"contracts falling within the scope of Directive 2004/18/EC" shall be understood as references
to the contracts covered by this Agreement, and references to "infringements of Community
law" shall be understood as meaning infringements of this Agreement. Where Directive
89/665/EEC makes reference to the publication of a tender notice or a contract award notice
in the Official Journal of the EU, such reference, in the case of Ukraine, shall mean the
publication in the appropriate Ukrainian media. It is also understood that Ukraine may use all
the flexibilities set out in Directive 89/665/EEC.
EU/UA/Annex XXI-C/en 2
Article 1 Scope and availability of review procedures
Article 2 Requirements for review procedures
Article 2a Standstill period
Article 2b Derogations from the standstill period
Paragraph (b)
Article 2c Time limits for applying for review
Article 2d Ineffectiveness1
Paragraph 1(b)
Paragraph 2 and 3
Article 2e Infringements of this Directive and alternative penalties
Article 2f Time limits
________________
1 Concerning the finding that a contract be considered ineffective according to Article 2(d) of
Directive 89/665/EEC, it is noted that, in conformity to Article 2(2) of the same Directive,
Ukraine may confer powers on separate bodies responsible for different aspects of the
procedure, including to the judiciary branch. However, in order to meet the requirement of
effectiveness, the responsible bodies must be enabled to take such decisions in an expeditious
manner, e.g. through an accelerated procedure.
EU/UA/Annex XXI-D/en 1
ANNEX XXI-D
ANNEX XXI-D to Chapter 8
BASIC ELEMENTS OF DIRECTIVE 2004/17/EC
(PHASE 3)
TITLE I
General provisions applicable to contracts and design contests
CHAPTER I
Basic terms
Article 1 Definitions: points 2, 7, 9, 11, 12, 13
CHAPTER II
Definition of the activities and entities covered
Section 1
Entities
Article 2 Contracting entities1
1 It is noted that 'bodies governed by public law' are bodies that fulfil all three conditions set out
in Article 2(1)(a) of Directive 2004/17/EC. Concerning 'public undertakings', the legal
presumption in Article 2(1)(b) of Directive 2004/17/EC serves to clarify the scope of
application of that Directive and remains without prejudice to the commercial law of the
Member States of the EU, or of Ukraine. For the purposes of Article 2(3) of
Directive 2004/17/EC, 'legislative, regulatory or administrative provisions' are legal acts
adopted by State, regional or local authorities and their administrations, within their
competence.
EU/UA/Annex XXI-D/en 2
Section 2
Activities
Article 3 Gas, heat and electricity
Article 4 Water
Article 5 Transport services1
Article 6 Postal services2
Article 7 Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as
ports and airports
Article 9 Contracts covering several activities3
1 According to Article 5(2) of Directive 2004/17/EC, that Directive does not apply to entities
providing bus transport services to the public where other entities are free to provide those
services, either in general or in a particular geographical area, under the same conditions as
the contracting entities. 2 The references to Directive 97/67/EC in Article 6 of Directive 2004/17/EC serve the purpose
of clarifying that the latter will not apply to activities relating to the provision of postal
services following their liberalisation (i.e., the opening to full competition). The same should
apply to Ukraine, if and when Ukraine decides to liberalise the market for postal services. It is
furthermore noted that the Ukrainian Postal administration currently does not offer all of the
services listed in Article 6(2)(c) of Directive 2004/17/EC, but that, if such services should be
offered at a later stage, they will be covered by this Chapter. 3 For the correct application of Article 9 of Directive 2004/17/EC, guidance and assistance is
provided by the Explanatory Note "Utilities Directive – Contracts involving more than one
activity", which has been published by the European Commission. When adopting specific
legislation to implement Article 9, Ukraine will take into account the guidance provided by
that document.
EU/UA/Annex XXI-D/en 3
CHAPTER III
General principles
Article 10 Principles of awarding contracts
TITLE II
Rules applicable to contracts
CHAPTER I
General provisions
Article 11 Economic operators
Article 13 Confidentiality
CHAPTER II
Thresholds and exclusion provisions
Section 1
Thresholds
Article 16 Contract thresholds
Article 17 Methods of calculating the estimated value of contracts, framework agreements
and dynamic systems
EU/UA/Annex XXI-D/en 4
Section 2
Contracts and concessions and contracts subject to special arrangements
Subsection 2
Exclusions applicable to all contracting entities and to all types of contract
Article 19 Contracts awarded for purposes of resale or lease to third parties1
Article 20 Contracts awarded for purposes other than the pursuit of an activity covered or
for the pursuit of such an activity in a third country: paragraph 1
Article 21 Contracts which are secret or require special security measures
Article 22 Contracts awarded pursuant to international rules2
Article 23 Contracts awarded to an affiliated undertaking3, to a joint venture or to a
contracting entity forming part of a joint venture
1 Article 19(2) of Directive 2004/17/EC is not applicable to contracting entities from Ukraine.
Instead, the Trade Committee may request Ukrainian contracting entities to provide relevant
information. 2 If and where Ukraine excludes contracts from the scope of application of the present chapter
pursuant to Article 22(a) of Directive 2004/17/EC, the notifications foreseen by that provision
should be made to the Trade Committee. 3 Directive 83/349/EEC does not apply to Ukraine. Thus, an 'affiliated undertaking' is
understood to be any undertaking the annual accounts of which are consolidated with those of
the contracting entity or any undertaking over which the contracting entity may exercise,
directly or indirectly, a dominant influence within the meaning of Article 2(1)(b) of Directive
2004/17/EC or which may exercise a dominant influence over the contracting entity or which,
in common with the contracting entity, is subject to the dominant influence of another
undertaking by virtue of ownership, financial participation, or the rules which govern it.
If and where Ukraine excludes contracts from the scope of application of the present chapter
pursuant to Article 23 of Directive 2004/17/EC, the notifications foreseen by that provision
should be made to the Trade Committee.
EU/UA/Annex XXI-D/en 5
Subsection 3
Exclusions applicable to all contracting entities, but to service contracts only
Article 24 Contracts relating to certain services excluded from the scope of this Directive
Article 25 Service contracts awarded on the basis of an exclusive right1
Subsection 4
Exclusions applicable to certain contracting entities only
Article 26 Contracts awarded by certain contracting entities for the purchase of water and
for the supply of energy or of fuels for the production of energy
CHAPTER III
Rules applicable to service contracts
Article 31 Service contracts listed in Annex XVII A
Article 32 Service contracts listed in Annex XVII B
Article 33 Mixed service contracts including services listed in Annex XVII A and services
listed in Annex XVII B
1 The reference to the EC Treaty in Article 25 of Directive 2004/17/EC does not directly apply
to Ukrainian contracting entities. Instead, this reference must be understood as referring to the
principles of non-discrimination, equality of treatment, transparency, mutual recognition and
proportionality.
EU/UA/Annex XXI-D/en 6
CHAPTER IV
Specific rules governing specifications and contract documents
Article 34 Technical specifications1
Article 35 Communication of technical specifications
Article 36 Variants
Article 37 Subcontracting
Article 39 Obligations relating to taxes, environmental protection, employment protection
provisions and working conditions
CHAPTER V
Procedures
Article 40 (except
paragraph 3 (i)
and (l))
Use of open, restricted and negotiated procedures
1 The technical specifications used by contracting entities of both parties shall comply to what
is agreed in the relevant Chapter (elimination of Technical Barriers to Trade) of this
Agreement.
EU/UA/Annex XXI-D/en 7
CHAPTER VI
Rules on publication1 and transparency
Section 1
Publication of notices
Article 41 Periodic indicative notices and notices on the existence of a system of
qualification2
Article 42 Notices used as a means of calling for competition: paragraphs 1 and 3
Article 43 Contract award notices (except for paragraph 1, second and third
subparagraphs)
Article 44 Form and manner of publication of notices (except for paragraph 2 first
subparagraph; paragraph 4; paragraph 5; paragraph 7)
1 Where, in the context of this Chapter of Directive 2004/17/EC and the relevant Annexes,
reference is made to notifications to, or to publication of information by, the Commission, it is
understood that Ukrainian contracting entities will address such notifications to the competent
entity designed by Ukrainian law, which will then proceed to the necessary publication of the
information concerned according to the rules set out in Ukrainian law. There will be one
single means of publication in Ukraine responsible for the publication of all tender notices
under this Chapter. In addition, Ukrainian contracting entities may publish the same
information also through other means. 2 Under Article 41(1) of Directive 2004/17/EC, the required publication of information can take
place either through the publication of a periodic indicative notice (as foreseen by Annex XV-
A), or, alternatively, through a 'buyer profile' (as described in Annex XX).
EU/UA/Annex XXI-D/en 8
Section 2
Time limits
Article 45 Time-limits for the receipt of requests to participate and for the receipt of
tenders
Article 46 Open procedures: specifications, additional documents and information
Article 47 Invitations to submit a tender or to negotiate
Section 3
Communication and information
Article 48 Rules applicable to communication1
Article 49 Information to applicants for qualification, candidates and tenderers
CHAPTER VII
Conduct of the procedure
Article 51 General provisions
1 Article 48(6)(a) of Directive 2004/17/EC: in Ukraine, requests to participate must be made in
writing.
EU/UA/Annex XXI-D/en 9
Section 1
Qualification and qualitative selection
Article 52 Mutual recognition concerning administrative, technical or financial
conditions, and certificates, tests and evidence
Article 54 Criteria for qualitative selection
Section 2
Award of the contract
Article 55 Contract award criteria
Article 57 Abnormally low tenders
EU/UA/Annex XXI-D/en 10
ANNEXES
Annex XIII Information to be included in contract notices:
A. Open procedures
B. Restricted procedures
C. Negotiated procedures
Annex XIV Information to be included in the notice on the existence of a system of
qualification
Annex XV A Information to be included in the periodic indicative notice
Annex XV B Information to be included in notices of publication of a periodic notice on a
buyer profile not used as a means of calling for competition
Annex XVI Information to be included in the contract award notice
Annex XVII A Services within the meaning of Article 31
Annex XVII B Services within the meaning of Article 32
Annex XX Features concerning publication
Annex XXI Definition of certain technical specifications
Annex XXIII International labour law provisions within the meaning of Article 59(4)
Annex XXIV Requirements relating to equipment for the electronic receipt of tenders,
requests to participate, applications for qualification as well as plans and
projects
________________
EU/UA/Annex XXI-E/en 1
ANNEX XXI-E
ANNEX XXI-E to Chapter 8
BASIC ELEMENTS OF COUNCIL DIRECTIVE 92/13/EEC1 OF 25 FEBRUARY 1992
COORDINATING THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS
RELATING TO THE APPLICATION OF COMMUNITY RULES
ON THE PROCUREMENT PROCEDURES OF ENTITIES OPERATING IN THE
WATER, ENERGY, TRANSPORT AND TELECOMMUNICATIONS SECTORS
(HEREINAFTER REFERRED TO AS "DIRECTIVE 92/13/EEC")
AS AMENDED BY DIRECTIVE 2007/66/EC
(PHASE 3)
1 For the purpose of this Agreement, it is clarified that the objective of legislative
approximation to Directive 92/13/EEC consists in ensuring the availability of appropriate
remedy procedures for contracts falling within the scope of this Agreement. Therefore,
references in Directive 92/13/EEC to "contracts referred to Directive 2004/17/EC" or
"contracts falling within the scope of Directive 2004/17/EC" shall be understood as references
to the contracts covered by this Agreement, and references to "infringements of Community
law" shall be understood as meaning infringements of this Agreement. Where
Directive 92/13/EEC makes reference to the publication of a tender notice or a contract award
notice in the Official Journal of the EU, such reference, in the case of Ukraine, shall mean the
publication in the appropriate Ukrainian media. It is also understood that Ukraine may use all
the flexibilities set out in Directive 92/13/EEC.
EU/UA/Annex XXI-E/en 2
Article 1 Scope and availability of review procedures
Article 2 Requirements for review procedures1
Article 2a Standstill period
Article 2b Derogations from the standstill period
Paragraph (b)
Article 2c Time limits for applying for review
Article 2d Ineffectiveness2
Paragraph 1 (b)
Paragraph 2 and 3
Article 2e Infringements of this Directive and alternative penalties
Article 2f Time limits
________________
1 Article 2(1) of Directive 92/13/EEC offers a choice of implementing either the measures
foreseen in subparagraphs (a), (b), and (d), or – alternatively – the measures foreseen in
subparagraphs (c) and (d) of that provision. Ukraine has indicated its intention to use the first
option, given that the current state of legislation does not allow using the second. However,
Ukraine reserves the right to use the second option at any later stage. 2 Concerning the finding that a contract be considered ineffective according to Article 2d of
Directive 92/13/EEC, it is noted that, in conformity to Article 2(2) of the same Directive,
Ukraine may confer powers on separate bodies responsible for different aspects of the
procedure, including to the judiciary branch. However, in order to meet the requirement of
effectiveness, the responsible bodies must be enabled to take such decisions in an expeditious
manner, e.g. through an accelerated procedure. It is further noted that the obligation to foresee
review procedures relating to procurement made under framework agreements and/or
dynamic purchasing systems is conditional on Ukraine deciding to make use of these
procedures; at the same time, it should be noted that the present Agreement does not oblige
Ukraine to use framework agreements and/or dynamic purchasing systems.
EU/UA/Annex XXI-F/en 1
ANNEX XXI-F
ANNEX XXI-F to Chapter 8
OTHER NON-MANDATORY ELEMENTS OF DIRECTIVE 2004/18/EC
(PHASE 4)
(The elements of Directive 2004/18/EC set out in Annex XXI-F are not mandatory. It is therefore
up to Ukraine to decide whether it wants to implement these elements, and whether it wishes to do
so within the timeframe set out in the time schedule. The EU, from its side, recommends the
implementation of these elements.)
TITLE I
Definitions and general principles
Article 1 Definitions (points: 5, 6, 7, 10, and 11c)
TITLE II
Rules on public contracts
CHAPTER II
Scope
EU/UA/Annex XXI-F/en 2
Section 2
Specific situations
Article 11 Public contracts and framework agreements awarded by central purchasing
bodies
Section 4
Special arrangement
Article 19 Reserved contracts
CHAPTER V
Procedures
Article 29 Competitive dialogue
Article 32 Framework agreements
Article 33 Dynamic purchasing systems
Article 34 Public works contracts: particular rules on subsidised housing schemes
CHAPTER VI
Rules on advertising and transparency
Section 1
Publication of notices
Article 35 Notices: paragraph 3; paragraph 4, subparagraphs two and three
EU/UA/Annex XXI-F/en 3
CHAPTER VII
Conduct of the procedure
Section 2
Criteria for qualitative selection
Article 52 Official lists of approved economic operators and certification by bodies
established under public or private law
Section 3
Award of the contract
Article 54 Use of electronic auctions
________________
EU/UA/Annex XXI-G/en 1
ANNEX XXI-G
ANNEX XXI-G to Chapter 8
OTHER MANDATORY ELEMENTS OF DIRECTIVE 2004/18/EC
(PHASE 4)
TITLE I
Definitions and general principles
Article 1 Definitions (points: 3, 4, and 11e)
TITLE II
Rules on public contracts
CHAPTER II
Scope
Section 3
Excluded contracts
Article 17 Service concessions
EU/UA/Annex XXI-G/en 2
TITLE III
Rules on public works concessions
CHAPTER I
Rules governing public works concessions
Article 56 Scope
Article 57 Exclusions from the scope (except the last paragraph)
Article 58 Publication of the notice concerning public works concessions
Article 59 Time limit
Article 60 Subcontracting1
Article 61 Awarding of additional works to the concessionaire
CHAPTER II
Rules on contracts awarded by concessionaires which are contracting authorities
Article 62 Applicable rules
CHAPTER III
Rules applicable to contracts awarded by concessionaires which are not contracting authorities
Article 63 Advertising rules: threshold and exceptions
Article 64 Publication of the notice
Article 65 Time limit for the receipt of requests to participate and receipt of tenders
1 For the purposes of this Agreement, the Parties consider that Article 60 of Directive
2004/18/EC shall be interpreted as meaning that, if a contracting authority decides to impose a
condition related to subcontracting, it must choose between the two options (a) and (b) set out
in that Article
EU/UA/Annex XXI-G/en 3
TITLE IV
Rules governing design contests
Article 66 General provisions
Article 67 Scope1
Article 68 Exclusions from the scope
Article 69 Notices
Article 70 Form and manner of publication of notices of contests
Article 71 Means of communication
Article 72 Selection of competitors
Article 73 Composition of the jury2
Article 74 Decisions of the jury
1 In the case set out in Art 67(2)(b) of Directive 2004/18/EC, the rules governing design
contests (Title IV) do not apply if the prizes and payments are below the thresholds defined in
Article 149(3) of the Chapter on Public Procurement of this Agreement and the contest notice
excludes the award of a public service contract subsequent to the contest. However, these
rules do apply in cases where a prize is awarded to the winner of the contest and the contest
notice does not exclude the award of a public service contract subsequent to the contest, if the
combined value of the prize and the contract exceeds these thresholds. The rules also apply
when no prize is awarded but the value of the subsequent contract is expected to exceed the
thresholds in Article 149(3) of the Chapter on Public Procurement of this Agreement. 2 It is clarified that the contracting authority is not prevented from forming a jury that includes,
or consists of, its own employees, provided that those employees fulfill the criteria set out in
Article 73 of Directive 2004/18/EC (i.e., that they are independent of participants in the
contest and dispose of the necessary qualifications).
EU/UA/Annex XXI-G/en 4
ANNEXES
Annex VII B Information which must appear in public works concession notices
Annex VII C Information which must appear in works contracts notices of concessionaires
who are not contracting authorities
Annex VII D Information which must appear in design contest notices
________________
EU/UA/Annex XXI-H/en 1
ANNEX XXI-H
ANNEX XXI-H to Chapter 8
OTHER ELEMENTS OF DIRECTIVE 89/665/EEC1
AS AMENDED BY DIRECTIVE 2007/66/EC
(PHASE 4)
Article 2b Derogations from the standstill period
Paragraph (c)
Article 2d Ineffectiveness2
Paragraph 1 (c)
Paragraph 5
________________
1 See Note 10
2 See Note 11
EU/UA/Annex XXI-I/en 1
ANNEX XXI-I
ANNEX XXI-I to Chapter 8
OTHER NON-MANDATORY ELEMENTS OF DIRECTIVE 2004/17/EC
(PHASE 5)
(The elements of Directive 2004/17/EC set out in Annex XXI-I are not mandatory. It is therefore up
to Ukraine to decide whether it wants to implement these elements, and whether it wishes to do so
within the timeframe set out in the time schedule. The EU, from its side, recommends the
implementation of these elements)
TITLE I
General provisions applicable to contracts and design contests
CHAPTER I
Basic terms
Article 1 Definitions: points 4, 5, 6, 8
TITLE II
Rules applicable to contracts
EU/UA/Annex XXI-I/en 2
CHAPTER I
General provisions
Article 14 Framework agreements
Article 15 Dynamic purchasing systems
Section 2
Contracts and concessions and contracts subject to special arrangements
Subsection 5
Contracts subject to special arrangements, provisions concerning central purchasing bodies and the
general procedure in case of direct exposure to competition
Article 28 Reserved contracts
Article 29 Contracts and framework agreements awarded by central purchasing bodies
CHAPTER V
Procedures
Article 40 (3) (i)
and (l)
CHAPTER VI
Rules on publication and transparency
EU/UA/Annex XXI-I/en 3
Section 1
Publication of notices
Article 42 Notices used as a means of calling for competition: paragraph 2
Article 43 Contract award notices (only for paragraph 1 second and third subparagraphs)
CHAPTER VII
Conduct of the procedure
Section 2
Award of the contract
Article 56 Use of electronic auctions
ANNEXES
Annex XIII Information to be included in contract notices:
D. Simplified contract notice for use in a dynamic purchasing system
________________
EU/UA/Annex XXI-J/en 1
ANNEX XXI-J
ANNEX XXI-J to Chapter 8
OTHER ELEMENTS OF DIRECTIVE 92/13/EEC1
AS AMENDED BY DIRECTIVE 2007/66/EC
(PHASE 5)
Article 2b Derogations from the standstill period
Paragraph (c)
Article 2d Ineffectiveness2
Paragraph 1 (c)
Paragraph 5
________________
1 See Note 24
2 See Note 11
EU/UA/Annex XXI-K/en 1
ANNEX XXI-K
ANNEX XXI-K to Chapter 8
PROVISIONS OF DIRECTIVE 2004/18/EC OUTSIDE THE SCOPE
OF THE PROCESS OF LEGISLATIVE APPROXIMATION
(The elements listed in this annex are not subject to the process of legislative approximation and
therefore do not need to be transposed into Ukrainian legislation)
TITLE II
Rules on public contracts
CHAPTER I
General provisions
Article 5 Conditions relating to agreements concluded within the World Trade
Organisation
CHAPTER VI
Rules on advertising and transparency
EU/UA/Annex XXI-K/en 2
Section 1
Publication of notices
Article 36 Form and manner of publication of notices: paragraph 2, paragraph 3,
paragraph 4, paragraph 5, paragraph 6, paragraph 8
Article 37 Non-mandatory publication
Section 5
Reports
Article 43 Content of reports
TITLE V
Statistical obligations, executory powers and final provisions
Article 75 Statistical obligations
Article 76 Content of statistical report
Article 77 Advisory Committee
Article 78 Revision of the thresholds
Article 79 Amendments
Article 80 Implementation
Article 81 Monitoring mechanisms
Article 82 Repeals
Article 83 Entry into force
Article 84 Addressees
EU/UA/Annex XXI-K/en 3
ANNEXES
Annex III List of bodies and categories of bodies governed by public law referred to in
the second subparagraph of Article 1(9)
Annex IV Central Government authorities
Annex VIII Features concerning publication
Annex IX Registers
Annex IX A Public works contracts
Annex IX B Public supply contracts
Annex IX C Public service contracts
Annex XI Deadlines for transposition and application (Article 80)
Annex XII Correlation table
________________
EU/UA/Annex XXI-L/en 1
ANNEX XXI-L
ANNEX XXI-L to Chapter 8
PROVISIONS OF DIRECTIVE 2004/17/EC
OUTSIDE THE SCOPE OF THE PROCESS OF LEGISLATIVE APPROXIMATION
(The elements listed in this annex are not subject to the process of legislative approximation and
therefore do not need to be transposed into Ukrainian legislation)
TITLE I
General provisions applicable to contracts and design contests
CHAPTER II
Definition of the activities and entities covered
Section 2
Activities
Article 8 Lists of contracting entities
EU/UA/Annex XXI-L/en 2
TITLE II
Rules applicable to contracts
CHAPTER I
General provisions
Article 12 Conditions relating to Agreements concluded within the World Trade
Organisation
Section 2
Contracts and concessions and contracts subject to special arrangements
Subsection 1
Article 18 Works and service concessions
Subsection 2
Exclusions applicable to all contracting entities and to all types of contract
Article 20 Contracts awarded for purposes other than the pursuit of an activity covered or
for the pursuit of such an activity in a third country: paragraph 2
EU/UA/Annex XXI-L/en 3
Subsection 5
Contracts subject to special arrangements, provisions concerning central purchasing bodies and the
general procedure in case of direct exposure to competition
Article 27 Contracts subject to special arrangements
Article 30 Procedure for establishing whether a given activity is directly exposed to
competition1
CHAPTER IV
Specific rules governing specifications and contract documents
Article 38 Conditions for performance of contracts
CHAPTER VI
Rules on publication and transparency
Section 1
Publication of notices
Article 44 Form and manner of publication of notices (only for paragraph 2 first
subparagraph; paragraph 4; paragraph 5; paragraph 7)
1 If and when Ukraine decides to implement a procedure for establishing whether a given
activity is directly exposed to competition similar to that set out in Article 30 of Directive
2004/17/EC, the EU will provide guidance and technical assistance. The rules applicable in
the EU are set out in: Commission Decision 2005/15/EC of 7 January 2005 on the detailed
rules for the application of the procedure provided for in Article 30 of Directive 2004/17/EC.
EU/UA/Annex XXI-L/en 4
Section 3
Communication and information
Article 50 Information to be stored concerning awards
CHAPTER VII
Conduct of the procedure
Section 3
Tenders comprising products originating in third countries and relations with those countries
Article 58 Tenders comprising products originating in third countries
Article 59 Relations with third countries as regards service contracts
TITLE IV
Statistical obligations, executory powers and final provisions
Article 67 Statistical obligations
Article 68 Advisory Committee
Article 69 Revision of the thresholds
Article 70 Amendments
Article 71 Implementation of the Directive
Article 72 Monitoring mechanisms
Article 73 Repeal
Article 74 Entry into force
Article 75 Addressees
EU/UA/Annex XXI-L/en 5
ANNEXES
Annex I Contracting entities in the sectors of transport or distribution of gas or heat
Annex II Contracting entities in the sectors of production, transport or distribution of
electricity
Annex III Contracting entities in the sectors of production, transport or distribution of
drinking water
Annex IV Contracting entities in the field of rail services
Annex V Contracting entities in the field of urban railway, tramway, trolleybus or bus
services
Annex VI Contracting entities in the postal services sector
Annex VII Contracting entities in the sectors of exploration for and extraction of oil or gas
Annex VIII Contracting entities in the sectors of exploration for and extraction of coal and
other solid fuels
Annex IX Contracting entities in the field of maritime or inland port or other terminal
facilities
Annex X Contracting entities in the field of airport installations
Annex XI List of legislation referred to in Article 30(3)
Annex XII List of professional activities as set out in Article 1(2), point b
Annex XXII Summary table of the time limits laid down in Article 45
Annex XXV Time limits for transposition and implementation
Annex XXVI Correlation table
________________
EU/UA/Annex XXI-M/en 1
ANNEX XXI-M
ANNEX XXI-M to Chapter 8
PROVISIONS OF DIRECTIVE 89/665/EEC
AS AMENDED BY DIRECTIVE 2007/66/EC
OUTSIDE THE SCOPE OF THE PROCESS OF LEGISLATIVE APPROXIMATION
(The elements listed in this annex are not subject to the process of legislative approximation and
therefore do not need to be transposed into Ukrainian legislation)
Article 2b Derogations from the standstill period
Paragraph (c)
Article 2d Ineffectiveness
Paragraph 1 (a)
Paragraph 4
Article 3 Corrective Mechanisms
Article 3a Content of the notice for voluntary ex ante transparency
Article 3b Committee Procedure
Article 4 Implementation
Article 4a Review
________________
EU/UA/Annex XXI-N/en 1
ANNEX XXI-N
ANNEX XXI-N to Chapter 8
PROVISIONS OF DIRECTIVE 92/13/EEC
AS AMENDED BY DIRECTIVE 2007/66/EC
OUTSIDE THE SCOPE OF THE PROCESS OF LEGISLATIVE APPROXIMATION
(The elements listed in this annex are not subject to the process of legislative approximation and
therefore do not need to be transposed into Ukrainian legislation)
Article 2b Derogations from the standstill period
Paragraph (a)
Article 2d Ineffectiveness
Paragraph 1 (a)
Paragraph 4
Article 3a Content of the notice for voluntary ex ante transparency
Article 3b Committee Procedure
Article 8 Corrective Mechanisms
Article 12 Implementation
Article 12a Review
________________
EU/UA/Annex XXI-O/en 1
ANNEX XXI-O
ANNEX XXI-O to Chapter 8
INDICATIVE LIST OF ISSUES FOR CO-OPERATION
training, in Ukraine and EU countries, of Ukrainian officials from government bodies
engaged in public procurement;
training of suppliers interested participating in public procurement;
exchange of information and experience on best practice and regulatory rules in the sphere of
public procurement;
enhancement of the functionality of the Public Procurement Web Site and establishment of a
system of public procurement monitoring;
consultations and methodological assistance from the EU Party in application of modern
electronic technologies in the sphere of public procurement;
strengthening the bodies charged with guaranteeing a coherent policy in all areas related to
public procurement and the independent and impartial consideration (review) of contracting
authorities' decisions. (Cf. Article 150(2) of this Agreement)
________________
EU/UA/Annex XXI-P/en 1
ANNEX XXI-P
ANNEX XXI-P to Chapter 8
THRESHOLDS
(Article 149(3))
The value thresholds mentioned in Article 149(3) shall be for both parties1:
(a) EUR 133 000 for public supply and service contracts awarded by central government
authorities, except for public service contracts defined in Directive 2004/18/EC Article 7. b.
3rd indent;
(b) EUR 206 000 in the case of public supply and public service contracts not covered by
point a);
(c) EUR 5 150 000 in the case of public works contracts and concessions;
(d) EUR 5 150 000 in the case of works contracts in the utilities sector;
(e) EUR 412 000 in the case of supply and service contracts in the utilities sector.
________________
1 The EUR thresholds quoted in this Annex should be adapted at the moment of the entry into
force of this agreement to reflect the thresholds then in place under the EU Directives.